The Call Sandra Was Not Expecting
Robert Harmon had worked for a telecommunications company in Allen, Texas for twenty-two years. He was methodical about most things — his yard, his tools, his retirement contributions. But he had never gotten around to writing a will. He was sixty-eight, in decent health, and had the quiet conviction of a man who assumed paperwork could wait.
He died in January 2026 from a heart attack, leaving behind his second wife, Sandra, the Allen house they'd shared for fifteen years, a 401(k), a small life insurance policy, and two adult sons from his first marriage — Kyle, forty-one, and Derek, thirty-eight — with whom Sandra had a polite but distant relationship.
Sandra's first call was to a real estate agent. She was sixty-three, and she wanted to downsize. The house was too large for one person, the yard demanded more work than she wanted, and she had a sister in Southlake she'd been meaning to live closer to. The agent referred her to a title company to start the process.
The title company's answer arrived in a three-paragraph email. The short version: the house was not entirely hers to sell.
Under Texas law, Robert's share of the community property — the house — had not passed to Sandra when he died. Because he had children from a prior relationship and no will directing otherwise, his half of the home had passed by operation of law to Kyle and Derek. Sandra now co-owned the property with two stepchildren she had barely spoken to in a decade. Before any buyer could receive clear title, a probate court had to formally declare who the legal heirs were. The process is called a Determination of Heirship, and it is governed by Chapter 202 of the Texas Estates Code.
The proceeding took six months. Attorney fees, the court-appointed attorney ad litem, and publication costs came to just over $6,400. A will — or a $600 Lady Bird deed — could have made all of it unnecessary.
What Most Texans Believe About Community Property — and What Texas Law Actually Says
The most persistent misconception in Texas probate is the assumption that a surviving spouse automatically inherits everything when there is no will. It is understandable. The couple built the estate together. The survivor lives in the house. Emotional ownership and legal ownership feel like the same thing.
They are not.
Texas is a community property state, which means that most assets accumulated during a marriage are owned equally by both spouses — 50/50, regardless of whose paycheck funded them. When one spouse dies without a will, what happens to their 50% share depends entirely on whether the couple had children together, children from prior relationships, or both.
Texas Estates Code § 201.002 states the rule precisely:
- If the deceased spouse had no children or descendants, OR all of the deceased's children and descendants are also the children and descendants of the surviving spouse, the surviving spouse inherits all community property outright.
- If the deceased spouse had even one child or descendant who is not also a child or descendant of the surviving spouse, the surviving spouse retains their own 50% of community property — and none of the deceased's 50%, which passes equally to the deceased's children.
For a blended family with real estate, the math is stark: the surviving spouse holds a 50% undivided interest; the deceased's children divide the other 50% equally among themselves. A couple that owned a $550,000 Allen home together now has a title that reads — legally, if not on any visible document — as three co-owners with competing interests and no agreement on what to do with the property.
What makes this especially disorienting is that nothing on the face of the deed changes when the spouse dies. The deed still shows the couple's names from when they bought the house. The title company sees a gap: the deed reflects prior ownership, there is no will to follow, and there is no court order establishing who holds title now. That gap cannot be bridged by a phone call, a death certificate, or even a well-intentioned affidavit from a neighbor. It requires a judge.
The Formal Determination of Heirship: What It Is and When It Is Required
Texas law offers two main tools for establishing title when someone dies without a will: the affidavit of heirship and the formal determination of heirship. They are not interchangeable, and understanding the difference is the first thing a family in Sandra's situation needs to grasp.
An affidavit of heirship is an out-of-court document — sworn statements from two disinterested witnesses who knew the decedent and can describe the family tree. When filed in the county deed records, it provides a basis for a title company to issue insurance. It is faster and cheaper than a court proceeding. But it is not a court order. Title companies have discretion to reject it, and most will exercise that discretion when the family history is contested, the witnesses are unavailable or their knowledge is limited, the family is blended, there is any suggestion of unknown children or prior relationships, or the property value is high enough that the insurer's exposure warrants more certainty.
A formal determination of heirship under Texas Estates Code Chapter 202 is a court proceeding. It ends with a judgment — signed by a judge, binding on all parties, admissible in all Texas courts and counties. Title companies insure around court judgments. They do not always insure around affidavits. When the affidavit path is unavailable, Chapter 202 is the required route.
The proceeding can also be used — and sometimes must be used — when a decedent left a will that was properly probated but omitted certain property, or when an estate has been partially administered but real estate was overlooked. It is not only an intestate tool, though that is its most common use.
How the Proceeding Actually Works: Six Steps From Filing to Judgment
The mechanics of a Chapter 202 proceeding are more involved than most families expect when they first learn a court hearing is required. Here is what the process looks like in a typical Collin County case.
Step 1: File the Application. The applicant — typically a surviving spouse, child, or other interested party — files a formal application in the statutory probate court or county court at law in the county where the decedent resided, or where the property is located if the decedent lived out of state. The application must name all known heirs, their addresses, their relationship to the decedent, and identify the property at issue. It must be supported by a sworn affidavit from the applicant.
Questions about probate? A WG Law attorney can walk you through your options.
Step 2: Court Appoints an Attorney Ad Litem. Texas Estates Code § 202.009 requires the court to appoint an attorney ad litem to represent the interests of any heirs whose names or locations are unknown. This is not optional — even if the family believes the heirs are fully accounted for, the court must appoint someone to verify that conclusion independently. The ad litem's fee — typically between $500 and $2,500 in most North Texas counties, depending on complexity — is paid from the estate. The ad litem must conduct an independent investigation, review the family history, and certify to the court that unknown heirs have been properly considered.
Step 3: Citation Is Issued and Published. The court issues citation — a formal legal notice — that must be served on all named heirs and posted or published in a newspaper of general circulation in the county for a period set by the court, usually four to six weeks. This notice period gives unknown creditors and unknown heirs the opportunity to appear. The waiting period is not negotiable; it is the mechanism that makes the resulting judgment binding on parties who were not personally served.
Step 4: Two Disinterested Witnesses Testify. At the hearing, the applicant must present at least two disinterested witnesses — people who knew the decedent, are familiar with the family history, and have no financial interest in the outcome of the proceeding. This requirement, embedded in the Chapter 202 framework and affirmed by longstanding Texas practice, is often the step that stalls families. Finding two credible, uninterested witnesses who can testify accurately about a blended family's structure — the prior marriage, the children's parentage, the absence of other marriages or children — requires advance planning. Old friends, neighbors, or coworkers of long standing often serve in this role.
Step 5: The Hearing. The judge hears testimony from the witnesses, reviews the ad litem's report, and considers any objections filed by named heirs or creditors. Uncontested proceedings are typically brief — thirty minutes to an hour. Contested proceedings, where heirs dispute the family history or challenge each other's claims, can extend for months and require full-scale litigation.
Step 6: Judgment Declaring Heirship. The court enters a written judgment that identifies each heir by name, states their relationship to the decedent, and specifies each heir's fractional interest in the property. This judgment is filed in the deed records of the relevant county and creates the clear chain of title the title company needs to insure the property for a future sale.
What the Judgment Fixes — and What It Does Not
The judgment tells the world who owns what. It does not tell co-owners what to do about it.
In Sandra's case, the judgment confirmed what the title company had suspected: she owned 50% of the Allen house outright, and Kyle and Derek each owned 25%. She could not sell without their consent. They were not obligated to cooperate. Texas law provides a remedy for co-owners who cannot agree — a partition action, in which a court can order the property sold and the proceeds divided — but partition litigation adds cost, time, and acrimony to a situation that had already consumed more than six months.
In the end, Sandra negotiated a buyout with Kyle and Derek, paying each of them their share of the appraised equity and retaining full ownership. The transaction closed eight months after Robert's death. She moved to Southlake three months later. She told her attorney — during the closing paperwork for the new home — that the detail that stayed with her was the cost comparison her probate attorney had mentioned at the start of the heirship proceeding: a will would have cost Robert roughly $400 to $600 to prepare. A Lady Bird deed — a transfer-on-death deed that would have passed the house directly to her without probate — would have cost a few hundred dollars more. The heirship proceeding, the buyout negotiation, and the partition threat that never quite materialized cost roughly forty times that.
What Robert Could Have Done
Texas gives property owners several tools to prevent exactly this outcome. None of them require complex planning — they require only a decision made before death rather than a proceeding managed after it.
- A will allowing Robert to direct his share of community property to Sandra, with or without provisions for Kyle and Derek, would have bypassed the intestate succession rules entirely. His estate could have been administered by Sandra as independent executor without a heirship proceeding.
- A Lady Bird deed (also called an Enhanced Life Estate Deed) would have transferred the Allen property to Sandra automatically at Robert's death, outside of probate, without any court proceeding. Robert would have retained full control of the property during his lifetime — including the right to sell it, mortgage it, or revoke the deed — and Sandra would have received it outright the moment he died. WG Law's real estate attorneys regularly prepare these deeds for Texas homeowners as part of a basic estate plan.
- A revocable living trust with Sandra as successor beneficiary would have accomplished the same result with added flexibility, allowing Robert to coordinate the transfer of multiple assets — not just the house — in a single instrument.
- A community property agreement under Texas Family Code § 112.051, designating all community property to pass to the survivor, is another option, though it requires careful drafting to avoid unintended consequences, particularly for blended families where the deceased's children also have equitable claims.
When You're Already in Sandra's Position
If you are reading this after the death has already occurred — after the will search turned up nothing, after the title company flagged the gap — the Chapter 202 proceeding is not a crisis. It is a defined process with a defined outcome. An experienced Texas probate attorney can walk through whether an affidavit of heirship might still work in your specific fact pattern, or whether a formal court proceeding is required. In blended families with real estate and children from prior relationships, the answer is almost always the court route.
At WG Law, Therese Gutierrez and Philip Burgess handle probate matters including formal heirship proceedings throughout Collin County and the greater Dallas-Fort Worth Metroplex. Both attorneys offer a free probate case review — a brief intake assessment to evaluate your situation and clarify which path makes sense before you commit to a full engagement. The firm has handled more than 2,000 probate cases across the DFW area.
Call 214-250-4407 or contact WG Law to request your free probate case review. We serve families in Allen, McKinney, Plano, Frisco, Prosper, Celina, Southlake, and across the North Texas area from offices in McKinney (7701 Eldorado Pkwy, Suite 200) and Southlake (1560 E Southlake Blvd, Suite 100, Office 116).
For related reading, see our articles on when an affidavit of heirship can fix title without a court hearing, Texas muniment of title as a streamlined probate option when a will exists, and the difference between independent and dependent estate administration in Texas. For clients who want to prevent this situation for their own families, our estate planning attorneys can prepare a will, Lady Bird deed, or living trust tailored to your property and family structure.
This article is provided for general informational purposes only and does not constitute legal advice. Texas intestate succession and heirship proceedings involve fact-specific analysis; outcomes vary depending on the decedent's family structure, property ownership, and county court procedures. Costs and timelines described are approximations based on typical North Texas cases and will differ by situation. Consult a licensed Texas probate attorney for guidance specific to your circumstances.